Calcutta High Court (Appellete Side)
The Principal Commissioner Of ... vs Smt. Leena Bose & Others on 24 August, 2023
24.08.2023
rpan/06-07
WPCT 104 of 2021
The Principal Commissioner of Customs
- Versus -
Smt. Leena Bose & Others
With
WPCT 80 of 2021
Smt. Leena Bose
- Versus -
The Union of India & Others
Mr. Surajit Samanta,
Mr. Biswajit Samanta,
Ms. Sohini Samanta
... for the Petitioner [in WPCT 80 of 2021]
and
Respondent no.1 [in WPCT 104 of 2021]
Mr. K. K. Maiti,
Ms. Aishwarya Rajyashree
... for the Petitioner [in WPCT 104 of 2021]
and
Respondent no.2 [in WPCT 80 of 2021]
The first writ petition, being WPCT 80 of 2021 has
been preferred by the applicant/petitioner herein, namely,
Leena Bose (in short, Leena) challenging the judgment
dated 23rd September, 2021 passed in an original
application, being O.A. 350/00305/2016. By the said
judgment the learned Tribunal upheld the demotion order
dated 8th February, 2016 by which Leena was demoted to
the post of Senior Tax Assistant (in short, STA) from the
post of Inspector (Preventive Officer) (in short, Inspector).
The second writ petition, being WPCT 104 of 2021
has been preferred by the respondent no.2 in the original
application, being O. A. 350/00305/2016 challenging a
part of the judgment dated 23 rd September, 2021 by
which the learned Tribunal restrained the respondents
therein from recovering the pecuniary benefits received by
Leena with effect from 29th December, 2011 i.e. the date
on which she was promoted to the post of Inspector till
the date of order of demotion dated 8th February, 2016 to
the post of STA.
Shorn of unnecessary details, the facts are that
Leena was initially appointed in the post of LDC in
Customs Department in the year 1993 and was promoted
to the post UDC and regularised in the said post in the
year 1996 and 2000 respectively. Thereafter, on 25th May,
2006 Leena was promoted to the post of STA. On 14 th
July, 2010 she was called for physical test for promotion
to the post of the Inspector but she was not considered
since it was found that her height was 151 cms though
the height required for the said post was 152 cms. A
fresh selection process for promotion to the post of
Inspector was initiated in the year 2011 in which Leena
participated. Upon physical measurement, her height was
found to be 152 cms. Accordingly, she was called for a
viva voce test in which she emerged to be successful and
by an order dated 29th December, 2011 she was promoted
to the post of Inspector. Subsequently, she was
regularised in the said post on 16th September, 2014. By
a memo dated 18th February, 2015 Leena was directed to
attend to the Chief Medical Officer/Superintendent, M. R.
Bangur Hospital on 25th February, 2015 for measurement
of her height in reference to complaint made by one Smt.
Ratna Das and one Smt. Sutapa Dey. About six months
thereafter by a memo dated 31 st August, 2015 she was
intimated about initiation of demotion proceedings and
was asked to show cause. By a representation dated 11 th
September, 2015 Leena requested the Customs
authorities (in short, Customs) to let her know about the
complaint on the basis of which the demotion proceeding
had been contemplated but in vain. On 16 th November,
2015 Leena replied to the show cause and thereafter, by
an order dated 8th February, 2016 she was demoted to the
post of STA.
Mr. Samanta, learned advocate appearing for Leena
submits that the contents of the judgment dated 23 rd
September, 2021 are self-contradictory. On one hand the
learned Tribunal arrived at a finding that 'the respondents
themselves are undisputedly in complicit error for recording
the incorrect height of the applicant' and on the other hand
penalised Leena, refusing to interfere with the illegal order
of demotion.
According to him, the impugned judgment is
violative of the principles of natural justice. Customs
initiated a demotion proceeding about four years after
Leena was promoted to the post of Inspector and that too
without supplying copy of the complaint on the basis of
which the demotion proceeding was initiated. Being
oblivious of such fact situation the learned Tribunal erred
in law in observing that 'we do not find any violation of the
principles of natural and procedural justice in the conduct
of the respondent authorities'.
He argues that the learned Tribunal erred in law in
not appreciating that Customs had proceeded against
Leena with a pre-conceived mind inasmuch as in the
memo dated 6th October, 2015 it was recorded that such
proceeding had been initiated since Leena was promoted
on the basis of a 'fabricated report'. Thus at the show
cause stage itself Customs arrived at a finding of guilt
against Leena. There was no such fabricated report since
Customs upon constituting a Committee measured the
height of Leena and upon ascertaining that her height
was 152 cms, appointed her to the post of Inspector.
He contends that Customs could not have reopened
the issue of promotion of Leena four years after such
promotion that too on the basis of alleged complaint
lodged by unsuccessful candidates. In support of the
arguments reliance has been placed upon an unreported
judgment of the Hon'ble Supreme Court delivered in the
case of J. Chitra Vs. District Collector and Chairman State
Level Vigilance Committee, Tamil Nadu & Ors. in Civil
Appeal No.5160 of 2010.
Per contra, Mr. Maiti, learned advocate appearing
for the respondent no.2 in the original application/ writ
petitioner in WPCT 104 of 2021 submits that at the time
of entry into service Leena incorporated her height to be 4
feet 10 inches. Surprisingly, in the year 2010 Leena's
height was stated to be 151 cms and as such, she was
rightly denied promotion in the selection process of 2010
since the height criterion as per the rules was 152 cms.
Again in the year 2011 Leena illegally declared her height
to be 152 cms and on the basis of such measurement she
was promoted. It is absurd to suggest that there would be
variation in height of a person after he/she attains the
age of majority. From such sequence it is explicit that
Leena herself had misled the authorities. Upon receiving
the complaint, Leena was sent to the Chief Medical Officer
/ Superintendent, M. R. Bangur for measurement of her
height and the competent Medical Board of doctors
declared her height to be 150 cms and as such, there is
no infirmity in the decision taken by Customs to demote
her.
Drawing our attention to the office note dated 18 th
February, 2015, Mr. Maiti submits that it would be
explicit from the contents of the same that complaint was
lodged against Leena and the allegation was regarding
shortage of height and as such, Leena cannot take a
stand that she was not aware about the contents of the
complaint and accordingly, there had been no violation of
the principles of natural justice since a show-cause was
issued on 31st August, 2015 to which she duly replied on
16th November, 2015 and upon considering the same, the
decision to demote her was taken on 8th February, 2016.
He argues that though from the fact situation it is
explicit that Leena suppressed material facts and availed
promotion to the post of Inspector, the learned Tribunal
erred in law in restraining Customs from recovering the
benefits enjoyed by Leena upon illegally serving as
Inspector for the period from 29th November, 2011 till 8th
February, 2016. In support of such arguments reliance
was placed upon a judgment delivered in the case of High
Court Punjab & Haryana & Ors. Vs. Jagdev Singh,
reported in AIR 2016 SC 3523.
He strenuously argues that the Hon'ble Supreme
Court in State of Punjab and Ors. vs. Rafiq Masih (White
Washer) & Ors., reported in (2015) 4 SCC 334
categorically detailed the situations in which a recovery
by the employer would be impermissible. Leena does not
come within the ambit of the said clauses and as such,
the learned Tribunal erred in law in retraining Customs
from recovering the benefits illegally obtained by Leena.
Drawing our attention to the order of promotion
dated 29th December, 2011, Mr. Maiti argues that the
promotion in the year 2011 was subject to a condition
that the persons promoted are liable for reversion if they
are found 'unsuitable for retention in the post' and as such
the allegation that Customs could not have reopened the
the issue of promotion of Leena is not sustainable. Upon
arriving at a finding that Leena did not fulfil the height
criterion, she was rightly demoted.
We have heard the learned advocates appearing for
the respective parties and considered the materials on
record.
Indisputably, Leena was promoted in the year 2011
to the post of Inspector after conducting a physical test on
28th December, 2011. The said test was conducted by a
Committee constituted by Customs. It is not a case that
Leena was in any manner instrumental towards such
measurement and recording of height. In view thereof, we
are unable to accept the argument of Mr. Maiti that Leena
had misled Customs.
Mr. Maiti had submitted that at the time of entry
into service on 9th April, 1993, Leena herself made a
declaration that her height was 4 feet 10 inches and as
such it is surprising that such height became 152 cms in
the year 2011. However, in the year 1993, Leena was aged
about 19 years and she was promoted in the year 2011
after the competent Committee constituted by Customs
ascertained her height to be 152 cms.
Principle of natural justice is attracted whenever a
person suffers a civil consequence or a prejudice is
caused to him by an administrative action. The complaint
in reference to which the demotion proceeding was
initiated was lodged by Ratna Das and Sutapa Dey, who
were unsuccessful in the selection process for promotion
to the post of Inspector in which Leena competed. Though
Leena submitted a specific representation to avail the said
complaint, such prayer was not attended to. In view
thereof, the learned Tribunal erred in law in proceeding
on the basis that there had been no violation of the
principles of natural justice.
Customs have not been able to establish, as stated
in the memo dated 6th October, 2015, that Leena's
promotion was on the basis of 'fabricated report'. Thus, it
appears that at the show-cause stage Customs arrived at
a finding of guilt against Leena.
There was no allegation of misconduct or of
unauthorised absence or of negligence in performance of
duties against Leena and no disciplinary proceeding to
that effect was initiated against her. It thus appears that
Customs had penalised Leena by demoting her moreso
when such demotion was on the basis of purported
complaint lodged by two unsuccessful candidates about
four years after Leena was promoted. The learned
Tribunal glossed over the said infirmities and did not
return any finding on the same and as such the
impugned judgment suffers from a patent error
warranting interference of this Court.
In the case of Jagdev Singh (supra) challenge was
against a direction issued by the State to the Accountant
General for the recovery of an excess payment towards
salary of the employee who submitted an undertaking
before receiving the revised pay. The said judgment is
clearly distinguishable on facts. It is well settled that one
little difference in the facts will free the Court from being
bound by the ratio of a decided case.
In the said conspectus, we are of the opinion that
learned Tribunal erred in law in the rejecting Leena's
prayer to set aside the order of demotion. The order of
demotion dated 8th February, 2016 is, accordingly, set
aside and quashed.
The argument of Mr. Maiti that Customs ought not
to have been prevented from realising the pecuniary
benefits earned by Leena while working in the post of
Inspector during the period from 29 th December, 2011 to
8th February, 2016, is not acceptable to us since Leena
rendered her duties as Inspector during the said period
after she emerged to be successful in a selection process
conducted by Customs and after her height was
ascertained to be 152 cms by the competent authority
constituted by Customs. In view thereof, the learned
Tribunal rightly restrained Customs from recovering such
benefits. We do not find any reason to interfere with such
direction.
We have been informed by Mr. Samanta that the
difference of salary to the tune of `1,28,862/- for the
period from 29th December, 2011 to 8th February, 2016
had already been recovered from Leena.
In view thereof, the Customs authorities are
directed to refund the said amount of `1,28,862/- to
Leena and to restore her to the post of Inspector within a
period of two weeks from date of communication of this
order.
It is further directed that Leena should be treated to
have served in the post of Inspector on and from 29 th
December, 2011 uninterruptedly. However, in the facts
and circumstances of the case, we refrain from directing
the Customs authorities to make payment of the
difference of salary for the period from 8 th February, 2016
till the date she is restored to the post of Inspector in
terms of our order.
With the above observations and directions, the writ
petitions, being WPCT 80 of 2021 and WPCT 104 of 2021
are disposed of.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon compliance of
all requisite formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
